MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 23 2018, 9:21 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce E. Andis Curtis T. Hill, Jr.
Lawrence County Public Defender Attorney General of Indiana
Agency
Bedford, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michelle Robin Lord, January 23, 2018
Appellant-Defendant, Court of Appeals Case No.
47A01-1707-CR-1696
v. Appeal from the Lawrence
Superior Court
State of Indiana, The Honorable William G.
Appellee-Plaintiff Sleva, Judge
Trial Court Cause No.
47D02-1503-F6-273
Crone, Judge.
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Case Summary
[1] Michelle Robin Lord challenges the sufficiency of the evidence to support her
convictions for level 6 felony operating a vehicle while intoxicated (“OWI”)
endangering a person and level 6 felony OWI with an alcohol concentration
equivalent (“ACE”) of .08 or more. We find the evidence sufficient to support
her OWI convictions. Nevertheless, we review sua sponte the double jeopardy
implications of Lord’s OWI convictions and, concluding that entry of judgment
on both convictions violates double jeopardy principles, we affirm her
conviction for level 6 felony OWI with endangerment but remand with
instructions to vacate her conviction and sentence for OWI with an ACE of .08
or more.
Facts and Procedural History
[2] The evidence most favorable to the verdicts is as follows. At 10:35 p.m. on
March 10, 2015, Bedford Police Department Major Danny Irwin and Captain
Raquel Turner responded to a dispatch concerning suspicious people around
two different houses in a residential area. When they arrived at the scene,
Major Irwin “saw a vehicle in the neighboring yard which had two (2) people at
it,” Tr. Vol. 2 at 45, one of whom was Lord. The vehicle had gone over a small
embankment and was stuck in a grassy area in residual slush, snow, and ice.
The vehicle was registered to Lord, and Major Irwin observed that the driver’s
seat was in a position that was further forward than the passenger’s seat. From
this he inferred that Lord was the driver, as her companion was a taller male.
When Major Irwin inquired about what happened, Lord admitted that she was
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the driver and had unsuccessfully attempted to turn around. As he conversed
with Lord, he observed that her speech was slurred, her eyes were bloodshot
and glassy, and she smelled like an alcoholic beverage. She was covered in
slush and water and told him that she had fallen three times. Major Irwin
escorted her up to the pavement, where she underwent standardized field
sobriety tests and failed all three. She consented to a certified chemical breath
test, which showed her ACE to be 0.11.
[3] The officers arrested Lord for OWI and Mirandized her. Lord admitted that
she had consumed a half pint of vodka and that she had been driving friends
around that evening. Police found two empty bottles of vodka in Lord’s
vehicle.
[4] The State charged Lord with OWI with endangerment 1 and OWI with an ACE
of 0.08,2 both as level 6 felonies due to her previous OWI conviction. Lord
admitted to her previous OWI, waiving a jury determination of the issue. The
jury convicted her as charged. The trial court sentenced her to one year, fully
suspended to probation.
[5] Lord now appeals. Additional facts will be provided as necessary.
1
Ind. Code § 9-30-5-2(b).
2
Ind. Code § 9-30-5-1(a).
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Discussion and Decision
Section 1 – The evidence is sufficient to support Lord’s OWI
convictions.
[6] Lord maintains that the evidence is insufficient to support her OWI
convictions. When reviewing a challenge to the sufficiency of evidence, we
neither reweigh evidence nor judge witness credibility. Moore v. State, 27
N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence and
reasonable inferences most favorable to the verdict and will affirm the
conviction unless no reasonable factfinder could find the elements of the crime
proven beyond a reasonable doubt. Id. Reversal is appropriate only when
reasonable persons would be unable to form inferences as to each material
element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.
2006), trans. denied. The evidence need not “overcome every reasonable
hypothesis of innocence.” Dalton v. State, 56 N.E.3d 644, 647 (Ind. Ct. App.
2016 (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)), trans. denied.
[7] To obtain a conviction for OWI, the State must prove beyond a reasonable
doubt that the accused operated a vehicle while intoxicated. Ind. Code § 9-30-
5-2. Here, Lord challenges only the sufficiency of evidence to support the
temporal element of each of her OWI offenses. In other words, she maintains
that the State failed to prove that she was operating “while” intoxicated. She
relies on Flanagan v. State, 832 N.E.2d 1139, 1141 (Ind. Ct. App. 2005), in
which another panel of this Court held that the State failed to establish when
the defendant had consumed his alcohol relative to his driving. There, a
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sheriff’s deputy spotted Flanagan and his passenger outside Flanagan’s disabled
vehicle on the side of the highway and did not stop to assist because he was
conducting a prisoner transfer at the time. Id. at 1140. However, the deputy
later returned to the disabled vehicle and found the two men walking toward a
local convenience store. Id. He offered them a ride, and as they rode in his
patrol vehicle, he noticed that Flanagan exhibited signs of intoxication. Id.
Flanagan failed the portable breath test administered shortly thereafter and
never disputed that he was intoxicated at the time that the deputy encountered
him walking along the highway. Id. In reversing Flanagan’s OWI conviction,
the Court emphasized the deputy’s testimony that he did not know how long
the vehicle had been sitting on the side of the highway before he encountered it.
Id. at 1141. Even then, the deputy did not stop immediately but returned after
completing his prisoner transport duty. Id. at 1140. The Flanagan court
concluded that there was simply no evidence presented as to when the
defendant consumed alcohol and that it was reasonable to infer that he and his
passenger drank beer after the vehicle had broken down and then, when they
ran out of beer, decided to go for help. Id. at 1141.
[8] We believe that Lord’s circumstances are more akin to those in McCray v. State,
850 N.E.2d 998, 1001 (Ind. Ct. App. 2006), trans. denied, and Weida v. State, 693
N.E.2d 598, 600-01 (Ind. Ct. App. 1998), trans. denied, both of which affirmed
OWI convictions in the face of challenges to the sufficiency of evidence to
support the temporal element. Both McCray and Weida involved a “reasonably
defined time period in which the drinking, intoxication, and driving occurred.”
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McCray, 850 N.E.2d at 1001. Weida consumed alcohol at a tavern and then
crashed his vehicle in a ditch. Weida, 693 N.E.2d at 599. McCray consumed
alcohol at a bar, picked up her children, intentionally struck her boyfriend’s
vehicle, drove home, and left the children inside her vehicle. McCray, 850
N.E.2d at 1001. In both cases, police arrived on the scene within minutes of
being dispatched. Both the Weida and McCray courts emphasized that it is the
factfinder’s function to weigh the evidence concerning the temporal element.
[9] Here, Lord admitted to Captain Turner that she had consumed a half pint of
vodka at a friend’s house earlier that night, Tr. Vol. 2 at 117, and that she had
spent the last few hours picking up friends, going to McDonald’s, and driving
friends home. When she drove over the embankment, her vehicle got stuck in
the back yard of a residence. A neighbor noticed a disturbance outside and
notified police. Major Irwin noted that the dispatch time was 10:35 p.m. and
testified that he responded immediately and arrived in about ten minutes. On
his arrival, he observed the hallmarks of intoxication in Lord’s looks, odor, and
behavior. Lord’s chemical breath test, time-stamped 11:34 p.m., showed an
ACE of 0.11. Forensic toxicologist Sheila Arnold testified that if Lord had
consumed a half pint of vodka after 10:00 p.m., “you would actually get higher
than this [0.11] concentration.” Id. at 135. These circumstances implicate a
more defined timeline than in Flanagan, where there was no evidence as to how
long Flanagan and his friend had waited by his disabled vehicle before going for
help (or more beer). 832 N.E.2d at 1141. The jury concluded that Lord drove
while intoxicated, and Lord’s arguments to the contrary are merely invitations
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to reweigh evidence and reassess witness credibility, which we may not and will
not do. See Moore, 27 N.E.3d at 754. The evidence is sufficient to support
Lord’s OWI convictions.
Section 2 – We review sua sponte Lord’s OWI convictions and
remand with instructions to vacate her conviction for OWI
with an ACE of .08 or more on double jeopardy grounds.
[10] Even so, we address sua sponte the trial court’s entry of judgment against Lord
on both OWI convictions. Because double jeopardy violations implicate
fundamental rights,3 we may review them sua sponte. Hayden v. State, 19
N.E.3d 831, 842 (Ind. Ct. App. 2014), trans. denied (2015). In Richardson v.
State, 717 N.E.2d 32, 49 (Ind. 1999), our supreme court set forth the statutory
elements and actual evidence tests to be applied to double jeopardy claims
made pursuant to the Indiana Constitution. Where, as here, “no constitutional
violation has occurred, multiple convictions may nevertheless violate the ‘rules
of statutory construction and common law that are often described as double
jeopardy, but are not governed by the constitutional test set forth in Richardson.”
Montgomery v. State, 21 N.E.3d 846, 865 (Ind. Ct. App. 2014), trans. denied
(2015). One such category is “conviction and punishment for a crime which
consists of the very same act as another crime for which the defendant has been
3
Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice
for the same offense.” The Fifth Amendment to the United States Constitution provides that no person
“shall be subject for the same offence to be twice put in jeopardy of life or limb.”
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convicted and punished.” Id. (citing Guyton v. State, 771 N.E.2d 1141, 1143
(Ind. 2002), and Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring)).
[11] Here, the jury convicted Lord of OWI with endangerment and OWI with an
ACE of .08 or more. Our review of the record reveals that both convictions
were based on the very same act, i.e., Lord drinking vodka and driving her
vehicle (and passenger) over an embankment. Because Lord’s OWI convictions
were based on the very same act, entry of judgment on both convictions
contravenes Indiana’s double jeopardy principles. Ordinarily, a violation of
double jeopardy principles requires that we vacate the conviction with the least
severe penal consequences. Moala v. State, 969 N.E.2d 1061, 1065 (Ind. Ct.
App. 2012). Here, however, both convictions were entered as level 6 felonies.
As the reviewing court, it is within our discretion to determine which
conviction should be vacated to remedy a double jeopardy violation. Id. at
1067. Accordingly, we affirm Lord’s conviction for level 6 felony OWI with
endangerment and remand with instructions to vacate Lord’s conviction and
sentence for level 6 felony OWI with an ACE of .08 or more.
[12] Affirmed and remanded.
Robb, J., and Bradford, J., concur.
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